A Hawaii Circuit Court judge sided with the government Tuesday in a civil lawsuit that challenged broad interpretations of state law that effectively keep secret many of the discussions behind public policy decisions.
Judge Virginia Crandall found that state and local agencies have a legitimate interest in keeping such talks out of public view so as to not interfere with the efficiency of government operations.
The case stemmed from a public records lawsuit filed by Civil Beat on May 8 against the City and County of Honolulu for withholding budget documents that Mayor Kirk Caldwell relied upon to form his spending plan for fiscal year 2016.
Specifically, Civil Beat wanted the city to provide departmental budget memos that laid out what each division was requesting from the mayor. These documents could show, for example, that the Honolulu Police Department wanted more money for service weapons or that the city’s street sweepers were in need of replacement.
The city denied Civil Beat’s records request, saying the documents were “predecisional and deliberative,” and therefore not releasable under the Uniform Information Practices Act, which allows agencies to conceal information that might otherwise lead to the “frustration of a legitimate government function.”
Civil Beat challenged the denial, arguing that the UIPA does not actually contain a “deliberative process privilege,” and that government agencies here have inappropriately used it as an excuse to repress public information for more than 25 years.
“The federal privilege has been under attack in recent years and has been described as a ‘withhold it because you want to’ privilege,” said Brian Black, the executive director of the nonprofit Civil Beat Law Center for the Public Interest. “We shouldn’t have this situation where government agencies are allowed to withhold records simply because they want to avoid scrutiny.”
The lawsuit blamed the Hawaii Office of Information Practices for much of the confusion, according to documents filed by Black, who represented Civil Beat in the case.
“If the public views every idea that’s suggested by anyone in the government then people would be reluctant to give ideas.” — Derek Mayeshiro, Honolulu deputy corporation counsel
When the Hawaii Legislature crafted the UIPA in 1988, lawmakers intentionally left out the deliberative process privilege, which is an exemption found in the federal Freedom of Information Act.
At the time, the Legislature said that it was “the policy of this State that the formation and conduct of public policy — the discussions, deliberations, decisions, and action of government agencies — shall be conducted as openly as possible.”
But the OIP — which is the state agency charged with interpreting the UIPA — issued an opinion less than six months later that adopted the federal deliberative process privilege, “in effect hiding all government deliberations from public scrutiny,” Black said.
Since then, OIP has issued several more opinions supporting the government’s right to use the privilege, even though, as Black argued, it’s not in the state public records law.
Government officials from both the city and state have said the privilege is critical for them to operate efficiently and effectively. Essentially, they argue that they need the ability to have frank discussions without undue scrutiny that could lead to embarrassment for airing ideas prematurely.
Honolulu Deputy Corporation Counsel Derek Mayeshiro wrote in court papers that the deliberative process privilege “preserves the executive government’s ability to brainstorm ideas without fear of undue public criticism.” Civil Beat’s attempt to invalidate the privilege, he said, could “severely cripple the City’s ability to develop policy and decide critical issues.”
The Hawaii Attorney General’s Office also weighed in on the case, arguing that the deliberative process privilege is “important for the everyday functioning of the State’s many agencies.”
“We shouldn’t have this situation where government agencies are allowed to withhold records simply because they want to avoid scrutiny.” — Brian Black, Civil Beat Law Center for the Public Interest
Both the city and state dismissed Civil Beat’s argument that the privilege was not part of the legislative intent when lawmakers passed the UIPA, saying that it was simply included under the broader context of the “frustration of a legitimate government function” exemption.
Tuesday’s oral arguments before Crandall lasted about a half-hour as each side reiterated its stance on the issue.
“The government cannot operate in a fishbowl, the government needs the freedom to suggest and solicit ideas, to deliberate and debate suggestions,” Mayeshiro said. “They need that freedom so the government can operate more efficiently, (and) so the government can enhance its decision-making process. If the public views every idea that’s suggested by anyone in the government then people would be reluctant to give ideas.”
Crandall decided that the OIP opinions that have been issued over the years have gone through “a thorough analysis.” She did not make a decision as to whether the city should release its budget documents to Civil Beat, leaving that decision to a future hearing.
Civil Beat Editor and General Manager Patti Epler said the news organization plans to appeal Crandall’s ruling on the deliberative process privilege.